New South Wales Supreme Court CITATION : Ali & ors v Shareef & ors [2009] NSWSC 1487 HEARING DATE(S) : 13 November 2009 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 13 November 2009 DECISION : Defendants not granted leave to read late affidavits, pending ascertainment at trial whether plaintiffs can meet them. CATCHWORDS : PROCEDURE – case management – late affidavits. CATEGORY : Procedural and other rulings Azmat Ali (first plaintiff/cross-defendant) Mohammed Afzal (second plaintiff) Muslim League of NSW Inc (second cross-defendant) Mohammed Shareef (first defendant/cross-claimant) Abdul Gani (second defendant/cross-claimant) Mohammed Hafiz (third defendant/cross-claimant) Sheikh Shafiul Haq (fourth defendant/cross-claimant) PARTIES : Dr Naseem Saiyad Ali (fifth defendant/cross-claimant) Haji Imam Buksh (sixth defendant/cross-claimant) Haji Izaac Amir Hussain (seventh defendant/cross-claimant) Dr Azam Ali (eight defendant/cross-claimant) Kalimud Din (ninth defendant/cross-claimant) Mohammed Azaad Khan (tenth defendant/cross-claimant) Mufti Naiem Ali (eleventh defendant/cross-claimant) Sheikh Iftikar Ali (twelveth defendant/cross-claimant) FILE NUMBER(S) : SC 5043/08 COUNSEL : R Dubler SC w A Combe (plaintiffs/cross-defendants) A Gruzman (defendants/cross-claimants) SOLICITORS : Henaghan McLean Lawyers (plaintiffs/cross-defendants) Kalmath Lawyers (defendants/cross-claimants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Friday 13 November 2009 5043/08 Azmat Ali & ors v Mohammed Shareef & ors JUDGMENT (ex tempore) 1 HIS HONOUR: These proceedings were listed for hearing on an expedited basis to commence on 23 November 2009 for four days. They involve the affairs of a Muslim association which operates educational institutions, the assets of which are effectively frozen with serious implications for their operations and the education of their students. It was for that reason that the matter was expedited. 2 Essentially, the plaintiffs claim that a particular meeting of the association at which resolutions were passed adverse to their interests was invalid. The defendants' cross-claim for the winding-up of the association. As Mr Dubler, for the plaintiffs has submitted, to leave the question of the winding-up pending only to resolve at this stage the plaintiffs' claim would still leave the affairs of the association in considerable disarray. Accordingly, the proceedings were set down for hearing on an expedited basis on the basis they could be heard within four days. All parties were then legally represented. Since then the defendants have, for reasons that the evidence has not explained, changed their solicitors. In the absence of evidence explaining that, I must consider that to have been nothing more than a matter of choice on the part of the defendants. 3 Directions had been made for the service of affidavit evidence. The last of those directions, which provided for the plaintiffs' affidavit evidence in reply, required that that evidence be served by 27 July 2009. It does not appear that there was any suggestion when the matter was set down for hearing on 14 August 2009 there was any further evidence to be forthcoming. However, on 6 November 2009, the defendants served four further affidavits – three of them by witnesses of whom no affidavit had previously been served. On 9 November 2009, the defendants served a further three affidavits – two of them by witnesses of whom no affidavit had previously been served. 4 Senior counsel for the plaintiffs has assured the court that it is not possible for the plaintiffs to be in a position to meet this evidence by the commencement of the hearing on 23 November next. It is pointed out that some relevant witnesses will be travelling to Mecca on pilgrimage. In the meantime, it should not be assumed that the evidence of any witness who is not available for cross-examination will be received by the court. 5 Although I find it slightly surprising that it is considered impossible to meet this material by 23 November, I am not prepared to put aside senior counsel's assurance that that is so. The evidence discloses that the new affidavits do raise new issues which, though they might be within the general scope of the pleadings, have not previously been addressed by evidence; in circumstances where they have not been previously addressed in the affidavit evidence I do not find the argument they are within the general scope of the pleadings compelling. 6 In my view it is just unacceptable that an expedited hearing of four days should be jeopardised by the service of eight new affidavits a fortnight before the hearing date. Nonetheless, I expect the plaintiffs to use their best endeavours to be in a position to meet that material. If it remains the position at the commencement of the hearing that the plaintiffs are unable to meet them or any of them, then those affidavits will not be permitted to be read. 7 I am therefore not prepared at this stage to grant leave to rely on the late affidavits at the hearing. The defendants will have the onus of persuading me at the hearing that they were served a reasonable time before the occasion for their use. On the other hand, I expect the plaintiffs to make such efforts as they can to meet such of the affidavits as they can. The end result might well be that some, but not all, of the disputed affidavits will be permitted to be read at the final hearing. 8 I adjourn the proceedings to 23 November 2009 at 10 am. As the necessity for the appearance today has been occasioned by the defendants' late service of the affidavits, I order the defendants to pay the plaintiffs' costs of today. 9 I extend time for the plaintiffs/cross-defendants to deliver their list of affidavits and of deponents required for cross-examination to 16 November 2009. I extend time for delivery of the plaintiffs/cross-defendants' tender bundle and chronology to 18 November 2009. I extend time for provision of original affidavits, notice of objections, outlines of contentions and lists of authorities to 20 November 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.